The UK Supreme Court (UKSC) has delivered its judgment in the Miller case. By a majority of 8 to 3, the Court dismissed the UK Government’s appeal, ruling that the UK Parliament is needed to trigger Article 50.
This provision is a treaty mechanism that provides formal legal notice of a decision that a country wishes to withdraw from the EU. The judgment dictates that if Brexit is to be legally initiated, Parliament is required to authorize ministers to trigger article 50. In other words, the EU referendum result must be put to a vote.
Parliamentary sovereignty is one of the core principles of UK constitutional law
This was a decision on the law, and did not concern the political dynamics of the Brexit situation. Law and politics should not be conflated. Lord Hughes, one of the dissenting judges, reminds everyone (at paragraph 283) that: “The Court is concerned only with the necessary procedure for the service of an Article 50 notice to leave”.
We must not forget the dangers of misunderstanding the role of the courts in our society. On the 5th of December last year, the first day of proceedings, Lord Neuberger, President of the UKSC, opened with an observation relating to the atmosphere of fear being imposed upon those involved in the case.
That such a note warranted mentioning reflects the lack of respect for – and understanding of – the rule of law in UK society. Judges were being urged to recuse themselves for illegitimate reasons, claimants were subject to malicious threats, and the Government didn’t bat an eyelid.
Instead of referring to a written constitution like in other countries, the Court had to rely on centuries’ worth of constitutional principles that have developed through statutes, court rulings, even the work of academics
Despite such pressures, the judges came to a sound decision – and an unsurprising one at that. Parliamentary sovereignty is one of the core principles of UK constitutional law. In this case, it was the link between constitutional law, EU law and international law that formed the basis of the intricate debate between the parties to this dispute. Article 50 provides that a member state of the EU deciding to withdraw must do so “in accordance with its own constitutional requirements”.
The UK has no written constitution, which is one reason why the Miller case was so complex. Instead of referring to a written document as judges can do in other countries, the Court had to rely on centuries’ worth of constitutional principles that have developed through statutes, the decisions of courts, and even the work of academics. Such a framework provides flexibility, but rarely complete clarity. The Court pointed toward this background at paragraph 40 of the judgment: “Unlike most countries, the United Kingdom does not have a constitution in the sense of a single coherent code of fundamental law which prevails over all other sources of law”.
In guiding the rationale toward reaching its final conclusions, the UKSC examined numerous sources of law, dating as far back as the 11th century. The rigor of the Court’s analysis should not be undermined. On the limited power of the Crown (now exercised by the executive), it was held that government ministers “are answerable to the UK Parliament”. Parliament limits the powers of government for many important reasons; a pertinent example being to prevent government ministers from frustrating the purpose of a particular law.
Leaving the EU would remove existing domestic rights of UK residents, making it legally impermissible for government to withdraw from any treaties without parliamentary approval
Although government has the legal capacity to exercise its prerogative powers at the international level, it was the potential for affecting domestic law that was a turning point in this case. Essentially, this means that the UK Government cannot undertake a specific course of action in the area of treaty-making at the international level (such as a withdrawal) if such conduct would in essence empty the content of a corresponding domestic law – thereby “preventing its effectual operation” in practice.
It was this intertwined connection between three bodies of law (domestic, EU, and international) that provided so much discourse in the UKSC during proceedings. The final judgment reflects those expansive arguments. A crucial part of the judgment is paragraph 86, where the UKSC sets out a clear, correct reason for making its overall ruling:
“EU Treaties not only concern the international relations of the United Kingdom, they are a source of domestic law, and they are a source of domestic legal rights many of which are inextricably linked with domestic law from other sources. Accordingly, the Royal prerogative to make and unmake treaties, which operates wholly on the international plane, cannot be exercised in relation to the EU Treaties, at least in the absence of domestic sanction in appropriate statutory form. It follows that, rather than the Secretary of State being able to rely on the absence in the 1972 Act of any exclusion of the prerogative power to withdraw from the EU Treaties, the proper analysis is that, unless that Act positively created such a power in relation to those Treaties, it does not exist. And, once one rejects the contention that section 2 accommodates a ministerial power to withdraw from the EU Treaties […] it is plain that the 1972 Act did not create such a power of withdrawal, as the Secretary of State properly accepts.”
In sum, the UK Government lacks the power on its own to remove EU law as a source of UK law.
The manner in which EU law interacts with UK domestic law means that leaving the EU would remove existing domestic rights of UK residents, making it legally impermissible for government to withdraw from any EU treaties without prior parliamentary approval. Bringing this standpoint back into the context of last year’s referendum, the Court highlighted:
“[The] implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation”.
There is no legal obligation on the UK Government to include regional parliaments (such as Scotland’s) in the official withdrawal process
The judgment of the UKSC splinters the force of Brexit – whatever that word means. The political movement observed so far has been a display of many meaningless (and irritatingly general) statements by government officials who do not evoke any feelings of pride or confidence in their abilities or character. In terms of political opposition (or lack thereof), there is little being done to hold the current government to a higher standard.
Instead what presently exists is a lot of faffing about, created by a resistance toward coming together to offer tangible solutions to the many multifaceted issues that are part of this situation. The political significance of Brexit has been substantial. However, this impact has taken no legal form as of yet, and will not do so unless acted on by parliament.
Another component of this judgment that will create waves in the political spectrum is the ruling on the devolved administrations (Northern Ireland, Scotland and Wales). On this point the UKSC took the view that the devolved powers “do not have a parallel legislative competence in relation to withdraw from the European Union”. Here the overall stance of the Court means that there is no legal obligation placed on the UK Government to include the devolved powers in the official withdrawal process – should it come to fruition.
This an interesting portion of the judgment, which can be found at paragraphs 126-151. The UKSC opined that relations with the EU and other matters concerning foreign affairs are reserved to the UK Government and Parliament. The legal effect of this in practice means that if Brexit goes ahead, the Scottish Parliament, for example, cannot veto the UK’s withdrawal from the EU.
In light of the current disunited climate, it would not be a wise choice for Ms May’s government to ignore Scotland’s powers
Although this legal position is accurate, it does not mean that features of it cannot be challenged on other grounds. For instance, the Sewel Convention is an aspect of the devolution settlement for Scotland. The Convention was incorporated into legislation under the Scotland Act of 1998. Last year this statute was amended by the Scotland Act of 2016, which added: “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
One submission worth considering is the importance of including the devolved institutions in international negotiations, especially those that have the capability of altering laws in, and settlements between, Westminster and the devolved nations. Despite the Court’s ruling that the consent of a devolved legislature not being a legal requirement before “the relevant Act of UK Parliament is passed”, from a political perspective, in light of the current disunited climate, it would not be a wise choice for Ms May’s government to ignore these powers.
Nicola Sturgeon, the First Minister of Scotland, would have been well aware of the likelihood of the UKSC coming to such a conclusion on the devolution questions. For her, involving the other countries part of the UK in the Brexit process is a sign of respect. However, respect for others is one of many qualities that the current UK Government lacks. It is therefore possible that further non-inclusive decision-making could result in the breakup of two unions.
It is long overdue that the government explains why it should place the rule of law at the heart of Brexit
Whether the UKSC’s judgment will lead to further litigation is uncertain. The Court did not express an explicit view on the irrevocability of Article 50. Not ruling on this question, like the High Court chose not to, leaves the door open for other legal forums to provide future insights on this characteristic of the Lisbon Treaty.
A separate proceeding has already been lodged before the High Court in the Republic of Ireland. The ostensible purpose behind this case is to ascertain a definitive answer regarding the revocability (reversibility) or irrevocability (irreversibility) of an Article 50 notification, by persuading the Irish High Court to refer this question to the Court of Justice of the EU (CJEU).
It seems the UK Government will adhere to the judgment of the UKSC – as it is constitutionally obliged to do. Attorney General Jeremy Wright gave the government’s first official reaction outside of the Court, stating that he was “disappointed” with the ruling, but that government would comply with it. This is at least one indication that someone in government respects the rule of law. At paragraph 151 of the judgment, the UKSC emphasises the responsibility of the judiciary to protect the rule of law. But it is not only for the judiciary in the UK to safeguard the rule of law.
Why the rush? Is speed really that imperative? Diligence in the legal profession is a sign of taking due care, and we should demand the same from government
This charge falls on all members of any polity. It is long overdue that the government explains why it should place the rule of law at the heart of Brexit, while providing some concrete illustrations as to how it will do so.
There are some who contend that triggering Article 50 is not necessary for the UK to leave the EU. Instead it could “just leave”. Such arguments are founded on misguided and unscrupulous understandings of international law and diplomacy, not to mention a disregard for the rule of law’s value in society. Perhaps such thinking stems from the feeling of great haste in “getting on” with Brexit.
Why the rush? In dealing with the referendum result, and potentially leaving the EU, is speed really that imperative? Diligence is a term frequently used in the legal sector. It is a sign of taking due care and methodically applying oneself to a task, where no details are left unexamined. We should be demanding the same from government. Hollow phrases like “a global Britain” are not acceptable. Some public officials are stepping up to the plate on Brexit, but there are issues that have been left (shamefully) unaddressed.
If you want to champion democracy, you have a responsibility to continue to listen to the people
The government has made no effort to tackle or discuss the racism attached to Brexit. There has been a dearth of public condemnation from the administration that wants to take the UK out of the EU toward the racist attacks on individuals and communities in the UK. Equally disturbing is that there have been no proposals on how precisely racism should be fought now, during the Brexit process, and in the future if the UK is no longer a member of the EU.
Human rights exist to empower people. They reflect a minimum benchmark that all people should live with dignity and have the freedom to choose how they live. Enforcing these rights against those that decide to violate or ignore them helps ensure that every human is able to develop their talents, their intellect, and their lives in general.
While there are undoubtedly going to be many negative consequences arising from leaving the EU (assuming it happens), protecting members of our global community from any acts of racist behaviour should form the bedrock of these political paths. The UK Government must participate more in this respect, and needs to do better, much better, in speaking out against the Brexiteers who base their convictions on racism.
The Supreme Court ruling that it is not for the executive government of the day alone to make these decisions is a statement that extends beyond this context, and should provide food for thought in the minds of politicians around the world. If you wish to champion democracy, you have a responsibility to continuously listen to people. I hope that the Members of Parliament listen to their constituents – but they cannot listen if no one speaks.
The opinions expressed in this article are entirely the author’s own and do not reflect those of any entities to which he is affiliated.
Image: Yogendra Joshi
Editor’s note: You can find out your MP’s position on important issues – and how to contact them – here